the handwriting was so bad that he could not read it correctly, he should not have undertaken to transmit it; but, the business of transmission assumed, it was plainly his duty to send what was written. It was no affair of his that the message would have been insensible. Messages are often sent along the wires that are unintelligible to the operator. When he presumed to translate the handwriting and to add letters which confessedly were not in it, he made the company responsible to Dryburg for the damages that resulted from his wrong-doing."'

§ 152. Not Liable for Mistake of Their Agent in Correcting Erroneous Message.-In line with the rule of the preceding paragraph, it has been held by the Commission of Appeals of Texas, that where the message, as delivered for transmission to the agent of the telegraph company, is, on being read over by him to the sender, discovered by the sender to be erroneous, and thereupon the agent assumes to correct it at the request of the sender, and makes a mistake in correcting it, so that it is transmitted as originally written, the company is not liable for damages arising from the mistake, or from the failure to transmit it as intended to be corrected. The case was that the plaintiff carried to the defendant's telegraph office a message written by himself in these words: "Can put stock on cars fourteen hands up twenty and half dollars two cars good sheep waiting." The receiving clerk read the message over aloud, and the plaintiff discovered that there was a mistake in it. The words "twenty and half" should have been "twenty-two and half.”

1 New York, etc. Tel. Co. v. Dryburg, 35 Pa. St. 298; s. c., Am. Dec. 238.

78

The clerk undertook to correct the mistake by interlining the proper words. But he also made a mistake and put the interlineation in the wrong place, so that the dispatch when corrected read thus: "Can put stock on cars fourteen hands up twenty and half dollars two cars good two sheep waiting." The message was in fact delivered to the person to whom it was addressed exactly as the plaintiff had originally written it, the interlineation which the clerk had attempted to make having been from some cause omitted. The plaintiff did not read over the message, or hear it read after it had been corrected by the clerk. The clerk, in his testimony, claimed to have made the correction at the request of the plaintiff; but the plaintiff testified that the clerk offered to make the correction, and was permitted to do so by him. It further appeared from the evidence that it was not only not the duty of the receiving clerk to alter messages which were brought into the office, but that he was not permitted to do so. His duties were simply to receive the message, count the words, receive the money, and convey the message to the operator. On this state of facts the court held that the plaintiff could not recover; reasoning that, in assuming to correct the message for the plaintiff, the clerk was not acting within the scope of the employment of his master, the telegraph company, and that it accordingly made no difference whether he acted sua sponte, or at the request of the plaintiff.'

§ 153. Not Bound to Transmit Oral Messages.-In the absence of evidence of any custom of a telegraph

I Western Union Tel. Co. v. Foster, 64 Tex. 220; s. c., 53 Am. Rep.

754.

company to receive messages orally delivered for transmission, a failure to transmit such a message is not a ground for recovering damages against the company. Accordingly it was held that the plaintiff could not recover damages against a telegraph company for the failure of its operator to transmit a message to him informing him that he, the operator, had been unsuccessful in a search for a doctor which he had made at the plaintiff's request,-no such message having been charged or paid for.'

1 Western Union Tel. Co, v. Dozier, 62 Miss. 288; s. c., 7 South. Rep. 325.

2 Ibid.

CHAPTER VII.

STATUTORY PENALTIES AGAINST TELEGRAPH COMPANIES.

SECTION.

157. General Obligation to Transmit Messages in the Order in Which They are Received.

158. Statutes Enforcing this Obligation.

159. Indiana Statute Giving Penalty for Bad Faith, Partiality, or Discrimination.

160. Missouri Statute Giving a Penalty.

161. Not Liquidated Damages, but a Penalty.

162. Jury how Instructed as to Statutory Obligation to Transmit Messages in the Order in Which they are Received.

163. Arkansas Statute Giving Penalty.

164. How far Statutes Apply to Interstate Messages.

165. Validity of Statute Imposing a Penalty where Dispatch is Sent to Another State.

166. No Action for Penalty for Non-Delivery of Message Delivered to be Sent on Sunday.

167. Exception where the Dispatch Relates to a Work of Necessity. 168. Burden of Proof as to Necessity.

169. Exception in Cases of Necessity or Charity.

170. The Necessity may be a Moral or Social Necessity.

171. The Necessity may be Created by Negligence.

172. Retention of the Money not a Ratification by the Telegraph

Company.

173. No Penalty for Refusing to Transmit Obscene Messages.

174. Penalty for Refusing Dispatches of Competing Lines.

175. When Notice to the Company Necessary.

176. When Payment of Actual Damages no Bar to Recovery of Pen

alty.

177. Action for Penalty by Addressee.

178.

Jurisdiction of Such Actions: Justices of the Peace.

§ 157. General Obligation to Transmit Messages in the Order in Which They are Received.—The public duty of a telegraph company is such that it is under the general obligation of transmitting any message delivered to it for that purpose, on the payment or tender of the usual charges, with reasonable diligence, and in the order of time, with reference to other messages, in which it was delivered to it."

§ 158.

Statutes Enforcing this Obligation.-The legislatures of many of the States, with the view of setting this question at rest, have enacted statutes making it the duty of the agents of such companies, under penalties, to receive dispatches from and for other telegraph companies, and from and for any person, and, on payment of the usual charges, to transmit them faithfully, without unreasonable delay, and (with certain exceptions) in the order in which they are received. Of a statute of this char

Mackay v. Western Union Tel. Co., 16 Nev. 222.

? Ark. Dig. Stat., Sec. 6419; Penal Code Cal., Sec. 638; Civil Code Cal., Secs. 2207, 2208; Gen. Stat. Conn. 1888, Sec. 3952; Rev. Stat. Ill. 1885, ch. 134, Secs. 6, 7; Rev. Stat. Ind. 1888, Sec. 4176, 4192a; McClain's Code Iowa, Sec. 2106; Gen. Stat. Ky. 1887, p. 431, Sec. 10; Rev. Stat. La. 1876, Sec. 3761; Md. Code 1878, p. 343, Sec. 136; Rev. Stat. Mo. 1889, Sec. 2725; Rev. Stat. Me. 1883, ch. 53, Sec. 1; Pub. Stat. Mass., ch. 109, Sec. 10; Comp. Laws Mich. 1882, Secs. 3706, 3707; Gen. Stat. Nev. 1885, Sec. 941; Rev. Stat. N. J. 1877, p. 1176, Sec. 12; 3 Rev. Stat. N. Y. (8th Ed.) p. 2062, 2065; 1 Rev. Stat. Ohio (1890), Secs. 3462, 3465; 2 Hill's Ann. Laws Oreg. 1887, Sec. 4176; 2 Bright Purd. Pa. Dig. 1629, Sec. 11; Code Va. 1887, Secs. 1291, 1292; 1 Thomp. & Steg. Tenn. Stat., Secs. 1322, 1324; Rev. Stat. Wis. 1878, Sec. 4557. By a recent statute in Connecticut, unjust discrimination by telegraph or telephone companies, in respect to furnishing telegraph or telephone service, etc., is prohibited. Pub. Acts Conn. 1889, ch. 160, p. 87. A recent statute of Georgia (Ga. Act Nov. 12, 1889; Acts 1888-89, p. 175), applies only to such telegraph companies as construct their lines after the passage of the act, and does not repeal Ga. Act Oct. 22, 1887 (Ga. Acts 1886-87, p. 111), prescribing penalties for violations of its provisions as to sending messages. Western Union Tel. Co. v. Cooledge (Ga.), 12 S. E. Rep. 264. The statute of Colorado (Colo. Stat. Act April 4, 1887; Laws 1887,